2017 (8) TMI 949 - AT - Income Tax

Addition of processing charges - as per AO turnover of the assessee had increased only 10% whereas the processing charges had increased multiple time - Held that - We have observed that the A.O. has not brought on record any cogent incriminating material, reasons or justifications while making adhoc disallowance of 10% of processing charges except taking a view that turnover of the assessee increased by 10% while processing charges increased in multiples which is not sufficient to sustain disallowance and fasten tax liability on the assessee, which additions in our considered view was rightly deleted by learned CIT(A) vide appellate order dated 19-09-2011. Thus, under these circumstances, we do not find any reason to deviate from the decision taken by the ld. CIT(A) vide appellate order dated 19-09-2011 with which we concur and appellate order of learned CIT(A) is hereby confirmed. We, therefore, dismiss the ground raised by the Revenue. Thus, Revenue fails on this ground. Disallowance of ice charges - Held that - Upward movement of turnover is not indicative of any overt attempt by the assessee to conceals his income, inflate expenses or to defraud revenue calling for adhoc disallowance in the absence of incriminating material brought on record by the AO for which onus was on the AO as the assessee discharged its primary onus by bringing on record the relevant material. We have observed that the A.O. has not brought on record any cogent incriminating material, reasons or justifications while making adhoc disallowance of 25% of ice charges except taking a view that turnover of the assessee increased by 10% while ice charges increased in multiples which is not sufficient to sustain disallowance and fasten tax liability on the assessee, which additions in our considered view was rightly deleted by learned CIT(A) Disallowance of chemical expenses - Held that - We have observed that the A.O. has not brought on record any cogent incriminating material, reasons or justifications while making adhoc disallowance of 10% of chemical expenses except taking a view that turnover of the assessee increased by 10% while chemical expenses increased in multiples which is not sufficient to sustain disallowance and fasten tax liability on the assessee, which additions in our considered view was rightly deleted by learned CIT(A) Disallowance being paid by the assessee to workmen under the head employees death - Held that - We are inclined to agree with the appellate order of learned CIT(A) with whom we concur and find no reason to deviate from a view taken by learned CIT(A) deleting the addition made by the AO. The AO has given a reasoning that since employee family will get compensation under PF and ESIC Act s, hence the compensation paid by the assessee is not an business expenses calling for disallowance u/s 37(1) of the 1961 Act is a view which is totally unsustainable view in the eyes of law as this expenses in infact is an expenses which is incurred wholly and exclusively for the business of the assessee within mandate of provisions of Section 37(1) of the 1961 Act, because firstly the compensation is paid to family of any employee who died in an accident in factory premises occurred which occurred during conducting business of the assessee during the previous year relevant to the impugned assessment year secondly the liability has arisen under the statute i.e. Workmen Compensation Act which the assessee is obliged under law to discharge, thereby fulfilling mandate of Section 37(1) of the 1961 Act from which ever angle it is seen, as it is a business expenses incurred wholly and exclusively for the purposes of business. We affirm well reasoned order of learned CIT(A) and refused to take a different view Disallowance of terminal handling charges and documentation handling charges - sec 172 applicability - tds liability - Held that - We have observed that with respect to these 22 parties, evidences w.r.t. only six parties have been enclosed in the paper book filed with the tribunal to claim that these payouts were to nonresident shipping companies and/or their agents which are covered by provisions of Section 172 of the 1961 Act and no disallowance is called for u/s 40(a)(ia) of the 1961 Act, and this claim of the assessee requires proper verification and examination both on facts and on law, by the AO. Thus, we deem it fit to set aside and restore the matter back to the file of the A.O. for de-novo determination of the issue on merit in accordance with law. The assessee is directed to appear before the A.O. and produce all cogent and relevant evidences to justify the claim that these amounts are not covered by 194C & 195 of the Act and thus, no disallowance is called for by filing details w.r.t. all twenty two parties which shall be evaluated/examined by the AO on merits both on facts and in law. The AO shall admit all evidences / explanations submitted by the assessee in the interest of justice and shall adjudicated the same on merits in accordance with law. Disallowance of interest expenses treating the same to be capital in nature - Held that - The assesee submitted the detail before the ld. CIT(A) as to the dates on which the fixed assets were put to use and the interest capitalized by the assessee. We have observed that details were not furnished before the AO and these details require verification by the A.O. as the said details were not filed before the A.O. as is emerging from records. The ld. CIT(A) has not called for any remand report from the AO nor these details were forwarded by learned CIT(A) to the AO for verification/examination, as is contemplated by Rule 46A of the Income-tax Rules, 1962. In our considered view, this matter is to be set aside and restored to the file of the A.O. for de-novo determination of the issue on merits after verification / examination of the details filed by the assessee . Needless to say proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principles of natural justice in accordance with law. This ground raised by Revenue is allowed for statistical purposes

Summary

Issues Involved:

1. Deletion of disallowance on account of processing charges.
2. Deletion of disallowance on account of ice charges.
3. Deletion of disallowance on account of chemical expenses.
4. Deletion of addition on account of workmen compensation.
5. Deletion of addition made under Section 40(a)(ia) for payments to shipping agents.
6. Deletion of estimated disallowance of interest capitalized.
7. Cross objections filed by the assessee.

Detailed Analysis:

1. Deletion of Disallowance on Account of Processing Charges:

The AO disallowed ?4,85,480/- towards processing charges due to an abnormal increase compared to the marginal increase in turnover. The CIT(A) deleted the disallowance, stating that the AO did not provide cogent reasons or evidence for the 10% adhoc disallowance. The Tribunal upheld the CIT(A)’s decision, noting that the AO failed to present incriminating evidence to justify the disallowance and the processing charges were insignificant relative to the turnover.

2. Deletion of Disallowance on Account of Ice Charges:

The AO disallowed ?8,30,395/- (25% of total ice charges) due to an abnormal increase compared to the turnover. The CIT(A) deleted the disallowance, citing a lack of justification and evidence from the AO. The Tribunal affirmed the CIT(A)’s decision, emphasizing that no incriminating material was provided by the AO to support the disallowance, and the ice charges were not significant relative to the turnover.

3. Deletion of Disallowance on Account of Chemical Expenses:

The AO disallowed ?2,52,933/- (10% of total chemical expenses) due to an abnormal increase compared to the turnover. The CIT(A) deleted the disallowance, stating that the AO did not provide cogent reasons or evidence for the adhoc disallowance. The Tribunal upheld the CIT(A)’s decision, noting that the AO failed to present incriminating evidence to justify the disallowance and the chemical expenses were insignificant relative to the turnover.

4. Deletion of Addition on Account of Workmen Compensation:

The AO disallowed ?4,15,960/- paid as workmen compensation, arguing that the assessee failed to justify the expense and establish its business expediency. The CIT(A) deleted the disallowance, noting that the payment was a statutory obligation under the Workmen’s Compensation Act due to an employee’s death. The Tribunal upheld the CIT(A)’s decision, agreeing that the expense was a statutory obligation and incurred wholly and exclusively for business purposes.

5. Deletion of Addition Made Under Section 40(a)(ia) for Payments to Shipping Agents:

The AO disallowed ?32,44,766/- for terminal handling and documentation charges, arguing that the assessee failed to deduct TDS. The CIT(A) deleted the disallowance, referencing CBDT Circular No. 723, which exempts such payments to shipping agents of non-resident ship owners from TDS. The Tribunal set aside the matter to the AO for de-novo determination, directing verification of the assessee’s claim that these payments were exempt from TDS.

6. Deletion of Estimated Disallowance of Interest Capitalized:

The AO disallowed ?3 lacs as interest capitalized, estimating it as interest on term loans before the plant & machinery was put to use. The CIT(A) deleted the disallowance, accepting the assessee’s submission that interest was capitalized correctly. The Tribunal set aside the matter to the AO for verification, noting that the details were not furnished before the AO and required examination.

7. Cross Objections Filed by the Assessee:

The assessee filed cross objections to support the relief granted by the CIT(A) on all issues agitated by the Revenue. Since the Tribunal decided all issues raised by the Revenue, the cross objections were accordingly disposed of.

Conclusion:

The appeal of the Revenue was partly allowed for statistical purposes, and the cross objections filed by the assessee were disposed of accordingly. The Tribunal upheld the CIT(A)’s decisions on several grounds but remanded some issues back to the AO for further verification and examination.